Judgment:
K.K. Tated, J.
1. The present Second Appeal is preferred by the original defendants against the Judgment and decree dated 13th September, 1984 passed by District Judge, Nanded in Regular Civil Appeal No. 105 of 1981 arising out of the Judgment and decree dated 16th February, 1981 passed by Civil Judge, Senior Division, Nanded in Regular Civil Suit No. 27 of 1976.
2. Heard learned Counsel appearing on behalf of the parties at length.
3. To avoid the confusion in the nomenclature, The parties will be referred as they appear in the Suit proceedings. Few facts of the present case are as under:
The plaintiff filed Regular civil Suit No. 27 of 1976 in the Court of Civil Judge, Senior Division, Nanded on 2nd February, 1976 for a declaration of ownership of the land of an area of 15 Gunthas of northern portion out of land Survey No. 70 measuring 2 Acres 15 Gunthas, assessed to land revenue Rs. 4.70 Paise situated at Nanded, along with perpetual injunction order restraining the defendants from committing any act that may cause any interference with and interruption in the possession of the plaintiffs on the suit land and mandatory injunction order to remove the wire fencing on the eastern and western sides of the suit land. In the said Suit, the plaintiff prayed as under:It is therefore prayed that the plaintiff's suit for declaration of ownership of the plaintiffs in respect of the land of an area of 15 gunthas of northern portion out of land S. No. 70 measuring 2 acres 15 gunthas of land revenue Rs. 4.70 p. situated at Nanded, having its boundaries: to the east public road, to the west public passage, to the north land now occupied by the Maharashtra State Electricity Board, to the south land belonging t the defendant out of S. No. 70, along with perpetual injunction order restraining the defendant from committing any act that may cause any interruption and interference with the possession of the plaintiffs in respect of the said area of land, and mandatory injunction order for removing the wirefence on the eastern and western sides of the said area of land, may kindly be decreed with costs against the defendant or the plaintiffs may be awarded any proper relief for which they may be found entitled to.
4. Thereafter the plaintiff filed an application for amendment of Plaint dated 21st January, 1981 and the said application was allowed by the trial Court on 29th January, 1981. The plaintiff amended the Plaint and added following sentence in the Plaint:
The possession of the suit land may kindly be delivered to the plaintiff by dispossessing the defendants.
5. The plaintiff also added para 14A) in the Plaint as per the amendment order dated 29th January, 1981:
14A) That the plaintiff are entitled to evict the defendants from the suit land and Hon'ble Court may pass a decree in favour of plaintiff for the delivery of possession of suit land by dispossessing the defendant from suit strip of land.
6. The plaintiff also added following two lines in prayer clause as per amendment order dated 29th January, 1981:
And the possession of suit land may kindly delivered to the plaintiff by dispossessing defendant.
7. It is the case of the plaintiff that Shriramrao s/o Hanmantrao Deshpande, the father of the plaintiffs was the ownerinpossession of the land Survey No. 70 measuring 2 Acres and 15 Gunthas. He sold 2 Acres of land out of Survey No. 70 to the defendant by registered sale deed dated 2nd Isfindar 1354 Fasli (January 1945) retaining area of 15 Gunthas of land of northern side with him. The major portion of the land i.e. 2 Acres out of Survey No. 70 was sold to the defendants and 15 Gunthas of land remained in ownership and possession of the father of the plaintiff and plaintiff reserved it for non agricultural use. The plaintiffs further submitted that in the village record the name of the defendant was entered inadvertently as an occupant of the entire area of 2 Acres and 15 Gunthas. Infact the ownership and possession of 15 Gunthas of land was never transferred to the defendants and same remained with plaintiffs' father Shriramrao Deshpande. It is the case of the plaintiffs that most of their family members were out of Nanded for their profession and therefore the area of 15 Gunthas of land remained vacant as they kept it for non agricultural use. It is the case of the plaintiffs that the said strip of land was used by public to pass from the public road of eastern side for the locality in the area of Railway Station, Nanded and Hamalpura. For the purpose of establishment of Maharashtra State Electricity Board, the land Survey No. 71 which is to the north of said strip of land of 15 Gunthas, has been acquired by the Government. It is the case of the plaintiffs that defendants got possession of land Survey No. 70 only to the extent of southern 2 Acres of land. The defendants have no right to claim ownership and possession of land of an area of 15 Gunthas in suit which is to the North of their land. The plaintiff No. 2 in the month of March, 1974 started residing at Nanded. He expressed his desire to use the said area of 15 Gunthas for building purpose. Therefore, they visited the suit land in the month of June, 1974 and noticed that the defendants unauthorizedly erected wire fencing to the land Survey No. 70 such as to cause obstruction to the plaintiffs to enter upon their portion of land of 15 Gunthas. The said wire fencing was to the entire Survey No. 70 i.e. including disputed land of 15 Gunthas also. Therefore, the plaintiffs asked the defendants not to create any dispute and disturb their possession in respect of the suit land which they wanted to use for non agricultural purpose. The plaintiffs requested the defendants to remove the wire fencing from the eastern and western side of the portion of land of 15 Gunthas. But the defendants on 16th March, 1975 flatly denied to do so and claimed to be the owner of that portion of land. Therefore the plaintiffs filed initially suit for injunction restraining the defendants from interfering with their peaceful possession of the suit land. Later on the plaintiffs applied to the trial Court for carrying out the amendment and the said application came to be allowed by the trial Court on 29th January, 1981 and the plaintiffs carried out amendment claiming possession of the suit land.
8. On the other hand the defendants filed their written statement on 30th July, 1976 and denied the plaintiffs' claim in respect of the suit land i.e. 15 Gunthas of northern side land in Survey No. 70. It is the case of the defendants that since the date of sale deed they are in possession of the suit land with the knowledge of the plaintiffs. For last several years the suit land stands in their names in revenue record. They are paying land revenue in respect of the suit land for the last several years. The defendants further submitted that the State of Maharashtra issued notification under Section 4 of the Land Acquisition Act for acquiring Survey No. 70 including the suit land. It is the case of the defendants that Land Acquisition Officer issued notice under the provisions of Land Acquisition Act dated 9th January, 1956 calling upon them to vacate and handover peaceful possession of the land admeasuring 2 Acres and 15 Gunthas from Survey No. 70. The said notice dated 9th January, 1956 is at Exhibit 23/3. The defendants further contended that they alone took appropriate steps with the revenue authorities as well as Government authorities for withdrawal of said acquisition proceedings under the Land Acquisition Act. In those proceedings the plaintiffs never participated and/or filed any application showing that they are in possession of the suit land. The defendants further contended that the Land Acquisition Officer by his letter dated 27th January, 1976 (Exhibit 23/8) informed the defendants that Government decided to withdraw the proceedings under the Land Acquisition Act for acquiring Survey No. 70 for industrial estate. The defendants' contention is that in the entire proceedings of the Land Acquisition Act, the plaintiffs never appeared and/or took any part in the said proceedings. The defendants submitted that they were in possession of the suit land from the date of sale deed with the knowledge of the plaintiffs and adversely to them. Plaintiffs never obstructed their possession and/or objected for using the said land as owner thereof for more than 30 years i.e. till the filing of the Suit in the trial Court. Therefore the defendants contended that they were in possession of the suit land for more than 12 years with the knowledge of the plaintiffs and the plaintiffs discontinued their possession of the suit land from the date of sale deed i.e. 2nd Isfindar 1354 Fasli.
9. The defendants further submitted that Shriramrao Deshpande was practicing Advocate at Nanded in the year 1354 Fasli. In those days the law of preemption as recognized by the High Court of Hyderabad was prevailing in that area of the State. There was possibility on behalf of owner of Survey No. 71 to file a suit for preemption regarding Survey No. 70, which was adjoining towards south of Survey No. 71. Therefore Shriramrao Deshpande represented to the defendants that to avoid the preemption litigation it was better not to include a strip of land adjacent to Survey No. 71 in the sale deed, so that the owner of Survey No. 71 would not be able to enforce his right of preemption. So he executed a registered sale deed on 2nd Isfindar 1354 Fasli in favour of the defendants relating to 2 Acres. In fact whole of land Survey No. 70 was sold by him to the defendants and the defendants were put in possession by him over the whole area of Survey No. 70. It is the case of the defendants that Survey No. 70 was previously purchased by Shriramrao Deshpande from one Dhyansing s/o Jaimalsingh under a registered sale deed dated 20th Khurdad 1335 F. This original sale deed was handed over to the defendants by Shriramrao Deshpande at the time of sale in favour of the defendants in the year 1354 Fasli. Had it been a fact that Shriramrao Deshpande had not sold and kept for himself northern portion of the land, he would not have handed over his title deed to the defendants. That title deed along with sale deed of 1354 Fasli were produced by the defendants in the land acquisition proceedings of Survey No. 70 in the office of the Deputy Collector, Nanded.
10. It is the case of the defendants that in the year 1954 the Government had started a land acquisition proceeding relating to the whole area of Survey No. 70. The proclamation was issued in the Government Gazette. The said proceeding was pending for more than 20 years, but neither the father of the plaintiffs nor the plaintiffs at any time appeared in the land acquisition proceedings and declared their rights relating to the suit land. The father of the plaintiffs an Advocate, was also member of the Nanded Municipal Council and the plaintiff No. 1 was also a Councilor. Survey No. 70 was to be acquired for Nanded Municipality and the father of the plaintiffs and the plaintiff No. 1 had full knowledge of acquisition proceedings, which ended on 27th January, 1976. the silence of the father of the plaintiffs and the plaintiffs for such a long period falsifies their claim that they were in possession of the suit land even after executing the sale deed in favour of the defendants.
11. The defendants further submitted that since the date of purchase i.e. 241354 Fasli, the defendants were in possession and enjoyment of the whole area of Survey No. 70 as owner, including the suit land and since then the defendants were paying land revenue of the whole land and the name of the defendant was recorded in the village record as owner and actual possessor of the whole Survey No. 70. The plaintiffs have admitted in their Plaint that during the period of 32 years neither they have paid any land revenue of the suit land nor their names or their father's name was recorded in the revenue record in respect of the suit land. The defendants further submitted that the plaintiffs or their father were not in possession of the suit land at any time after 241354 Fasli. As the plaintiffs were not in possession within 12 years next before 1st January, 1964 (the date of introduction of new Limitation Act), the claim of the plaintiff for possession of the suit land was barred by limitation as per Article 142 of the Indian Limitation Act, 1908.
12. On the basis of pleadings of both the parties, the Civil Judge, Senior Division, Nanded by Judgment and decree dated 16th February, 1981, decreed the suit filed by the plaintiff and declared as under:
Be it hereby declared that title to suit strip of land admeasuring 15 gunthas out of Survey No. 70 situated at Nanded vests in Plaintiffs and other legal heirs of late Shriramrao Deshpande. The legal representatives of the deceased Defendant to deliver possession of the suit strip of land to the plaintiffs. The suit so far it relates to the reliefs of perpetual and mandatory injunctions stands dismissed.
13. Being aggrieved by the said Judgment and decree dated 16th February, 1991, defendants preferred Regular Civil Appeal No. 105 of 1981. The said Appeal came to be dismissed. The present Second Appeal admitted on 18th December, 1984 on following substantial questions of law:
(i) Since they did not file the suit within 12 years after the said date their suit for possession was already barred by limitation under the old Act.
(ii) Section 31 of the new Indian Limitation Act provides that if the limitation prescribed under the Repealed Act is expired, the new Act does not enable the party to institute the suit under the new Act.
(iii) The lower Court decided Point No. 2 in the negative under the erroneous concept about the adverse possession.
14. The learned Counsel for the Appellant contended that the learned Judge of the first appellate Court on considering the oral and documentary evidence on record having found that the late defendant right from the year 1934 Fasli till the date of filing of the suit was in possession of whole of the land Survey No. 70 including 15 Gunthas of land in suit and the plaintiffs failed to plead and prove that as to when he was dispossessed of the suit land , the learned Judge of the first appellate Court should have held that the claim of the plaintiff for possession of the suit land inserted in the Plaint by amendment of the Plaint in the year 1981, was long barred by time in view of the provisions of Article 142 and Section 28 of the Limitation Act, 1908 and in view of the provisions of Section 31 of the Limitation Act, 1963 he should have dismissed the suit as barred by limitation. He submitted that though this legal question was raised by the defendant in the Memo of Appeal, the learned first appellate Court did not consider and decide it while deciding the Appeal. He submitted that this substantial question of law needs to be decided by this Court in the Second Appeal.
15. In order to appreciate the submissions made by learned Counsel for the Appellants, it is necessary to advert to the provisions of Article 142 and Section 28 of the Limitation Act, 1908 and Section 31 of the Limitation Act, 1963 which repeals the Limitation Act, 1908. Article 142 of the Limitation Act, 1908. They read thus:
142.For possession of immovable property when the plaintiff, while in Twelve years The date of the dispossession or discontinuation possession of the property, has been dispossessed or has discontinued the possession.
Section 28 of the Limitation Act, 1908 reads thus:
28. Extinguishment of right to property At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
Section 31 of the Limitation Act, 1963 reads thus:
31. Provisions as to barred or pending suits, etc. Notwithstanding in this Act shall,
(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or
(b) affect any suit, appeal or application instituted, preferred or made before , and pending at, such commencement.
Description of suit Period of limitation Time from which period begins to run 64. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed Twelve years The date of dispossession 65. For possession of immovable property or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff
16. In view of the above provisions of Limitation Act of 1908 and 1963, it is necessary to consider whether the plaintiffs suit for possession is within limitation. If it is found that he was not in possession of the suit land within 12 years before the commencement of the new Limitation Act, 1963 and such position continued upto the date of suit which was filed after commencement of new Limitation Act, 1963, then in view of Section 31 of the Act of 1963, the plaintiffs suit filed in the year 1976 and the claim for possession inserted in the year 1981 as per order dated 29th January, 1981, will be clearly barred by limitation. The learned lower appellate Judge on the point of possession of the suit land after the plaintiffs' father executed the sale deed dated 1354 Fasli , at Para 12 of his Judgment stated thus:
On the point of possession, there is no satisfactory evidence. However, I am inclined to hold in favour of the Defendant. There is no satisfactory oral evidence on record to show as to who was in possession. But the documentary evidence and the circumstances do show that the Defendant may be in possession. As aforesaid, the entire land of S. No. 70 was entered in the name of the Defendant. He was paying the land revenue of the entire land. He is found to be in possession on the date of the suit. The Plaintiffs are not in a position to say as to when they were dispossessed. It is the case of the Defendant that he erected a fencing ground the entire land long back. The Plaintiffs are not in a position to prove as to when this fencing was erected. All these circumstances, in my opinion, go to show that the deceased Defendant was in possession. The Plaintiffs could have led satisfactory evidence to show that the initial their father and after his death, they were in possession of the suit land. Such evidence is not led by them. In my opinion, the circumstances are certainly in favour of the Defendant.
17. Thus the first appellate Court which is the final authority on the question of facts to be decided on the appreciation of evidence both oral and documentary on record, has found in favour of the defendant on the point of possession of the suit land right from the year 1945 when the sale deed of 1354 Fasli was executed by the father of the plaintiffs in favour of defendants till the date of filing of the suit. In view of such finding, it follows that neither the plaintiff nor his father was at any time in possession of the suit land from 1354 Fasli after execution of the sale deed in favour of the defendant till the date of filing of the Suit. Therefore, in view of of Article 142 and Section 28 of the Limitation Act, 1908, his claim for recovery of possession of the suit land was barred by limitation and the right of the plaintiff to possess the suit land had extinguished in view of Section 28 of the Limitation Act, 1908 and as per Section 31 of the Limitation Act, 1963, the plaintiffs' claim for recovery of possession was barred. Consequently it must be held that the suit was liable to be dismissed as barred by limitation.
18. The next legal question to be considered is whether the defendants and their predecessors in title Jeevanrao Madhavrao Bodhankar acquired title to the suit land even by adverse possession. While considering the bar of limitation, earlier it has been demonstrated that the defendants Appellants proved that they were in possession of the suit land of 15 Gunthas right from the year 1354 Fasli till the date of filing of the suit. The lower appellate Court on considering the oral and documentary evidence on record, accepted the case of the defendants Appellants that they were in possession of the suit land from the year 1354 Fasli till the date of filing of the Suit but the lower appellate Court did not accept that the possession of the defendant was adverse to the plaintiff, the title holder of the suit land. Learned Counsel for the defendants submitted that the possession of the late defendant over the suit land from the year 1354 Fasli till the date of filing of Suit satisfied all the legal requirements for holding that the possession of the defendant was adverse to the plaintiff and his deceased father Shriramrao Deshpande, and the learned first appellate Court erred in holding that the possession of the defendant was not proved to be adverse to the plaintiff.
19. It is submitted by the learned Counsel for the defendants that learned Judge of the first appellate Court, in Para 14 of the Judgment, while upholding the defendant's case that he was in possession of the suit land right from the year 1354 Fasli till the date of filing of Suit, observed as follows:
The evidence nowhere shows that the Defendant was at any time in adverse possession. Apart from this fact, there is absolutely no evidence about adverse possession of the Defendant on record. As aforesaid, the original Defendant died before trial started and after his death at the time of the trial, the evidence of his elder brother was led. That is the only oral evidence on record in support of the case of the Defendant. This elder brother of the Defendant by name Shamrao, nowhere states in his evidence that the deceased Defendant was in adverse possession of the suit land. In other words, he has not uttered a single word about the adverse possession of the deceased Defendant of the suit land. This means even though an alternative plea of adverse possession was taken, such evidence was not at all sought to be produced. The evidence led is to show the possession of the deceased Defendant of the suit land. As aforesaid, it may prove possession but mere possession is not sufficient to prove title by adverse possession. In these circumstances, I am of the clear opinion that the deceased Defendant has failed to prove his adverse possession.
20. The learned Judge of the first appellate Court is of the opinion that the witness examined on behalf of the defendant should have stated in his deposition that the original defendant his late elder brother, was in adverse possession of the suit land,had the possession of the deceased defendant over the suit land was adverse. According to learned Counsel for the Respondents, there should be oral evidence of the party claiming adverse possession that his possession on the suit land was adverse to reach to the conclusion that the possession of the said party on the suit land was adverse and in the absence of such oral evidence the proved possession of the party over the suit land could not be treated as adverse possession. Learned first appellate Court failed to notice that nature of the possession whether adverse or otherwise has to be decided not on the oral statement of the party to that effect but it has to be inferred from the animus and the nature of the acts of party in relation to the suit land over which the adverse possession is claimed. The adverse possession means the possession by the person holding the land on his own behalf or on behalf of some person other than the true owner having a right to immediate possession,provided that the true owner is not under a disability or incapable of showing. In the present case the plaintiff's father Shriramrao Deshpande was a practising Advocate and the late defendant was also well educated and both the parties knew that the legal title to the suit land vested with the plaintiff's father as the sale deed was executed for 2 Acres out of 2 Acres and 15 Gunthas of the land of Survey No. 70. The suit land was possessed by the late defendant since 1354 Fasli till the date of filing of Suit, on his own behalf to the exclusion of the true owner and all others. Late defendant paid the land revenue of the entire Survey No. 70 along with the suit land. All Survey No. 70 was mutated in the revenue record in the name of late defendant Balwantrao, brother of the defendant, who looked after and managed the agricultural land of the family of three brothers namely, Shamrao, Balwantrao and Jivanrao. The entry of Survey No. 70 , area of 2 Acres and 15 Guthas in the revenue record was made in the name of Balwantrao in the year 195354. Shriramrao Deshpande, father of the plaintiff never objected to the mutation of the suit land in the name of Balwantrao till his death on 9th February 1962. After his death, his heirs including the plaintiff, also never objected to the mutation. There were acquisition proceedings as regards Survey No. 70, area 2 Acres and 15 Gunthas, during the period from 1954 to 1976. The defendant alone fought out the acquisition proceedings. All these hostile acts of the defendant in respect of suit land were to the knowledge of late Shriramrao Deshpande and after his death, to the knowledge of his heirs including the plaintiffs. The defendant had also put up wire fencing to the suit land along with 2 Acres of land of S. No. 70 purchased by him from father of the plaintiff and the suit land being agricultural land, was all along being cultivated by the defendant or someone on behalf of the defendant to the knowledge of the plaintiffs. The land revenue assessed on the whole Survey No. 70, area 2 Acres and 15 Gunthas, was paid by the defendant alone. All these acts of the defendants in respect of the suit land were to the knowledge of the plaintiff and his late father Shriramrao Deshpande. Therefore, it can be legitimately inferred that possession of the defendant over the suit land was on his own behalf and it was hostile to the knowledge of the true owner having the right to immediate possession. The possession was hostile under a claim or colour of title, actual, open notorious, exclusive and the continuous, continued for the required period of time thereby giving an indivisible right of possession or ownership to the possessor by the operation of the limitation of actions. As per the Limitation Act, 1963, Article 65 provides a period of 12 years for filing a suit for possession of immovable property or interest therein from the date on which the possession of the defendant becomes adverse to the plaintiff. In this case the possession of the defendant over the suit land became adverse to the plaintiff in the year 1354 Fasli and it has continued up to the date of filing of the Suit i.e. 1976 and the claim for possession by amendment in the Plaint in the year 1981, for more than 12 years before the date of Suit and as such claim of the plaintiff was also barred due to adverse possession of the defendant, for the statutory period required to acquire title to the suit land, by adverse possession.
21. Learned Counsel appearing on behalf of the defendant Appellant relied on the Judgment in the matter of Ambika Prasad Thakur and Ors. v. Ram Ekbaj Raj (dead) by his legal representatives and Ors. reported in AIR 1966 S.C. 605 (V 53 C 115). In this case the Apex Court held that plaintiffs having failed to establish possession within 12 years of the suit, the suit is barred by Article 142. Learned senior counsel for the defendant mainly relied on Para 11 of the Judgment, which reads as under:
11. We thus find that in 190910 the ancestors of the plaintiffs and defendants 3rd party were in possession of their respective plots in the narrow 35 bighas strip on the western boundary of Dubha Taufir. The Bhagar then ran close to this narrow strip. The rest of the Dubhja Taufir including the bed of the Bhagar was a sandy waste measuring about 355 bighas. The bed of the Bhagar occupied a considerable area. In 1909 there was a scramble for possession of the remaining land of the Dubha Taufir between the Bhagar and the Ganges. The Sheopur Babus were successful in obtaining possession of the land and from 1909 right up to 1925 barring an interval of two years between November 1913 and November 1915 the Sheopur Babus retained possession of the disputed land. The plaintiffs led oral evidence to show that they retained possession from 1909 to 1925, but we are not prepared to accept this testimony. On a rough measurement, the area of the disputed land was then given as 244 bighas and later 258 bighas. As a matter of fact, this disputed land represented practically the entire Dubha Taufir barring the narrow western strip of 35 bighas and the bed of Bhagar. We are not prepared to accept the plaintiffs' case that a considerable distance separated the Bhagar from the strip of 35 bighas and that the plaintiffs were in possession of the intervening land. On April 30, 1925, Sheopur Babus lost possession and the Dumaraon Raj obtained khas possession of the disputed land. The Dumraon Raj continued to be in khas possession of this disputed land as also of other newly accreted land until 19341. In the absence of the records of the Dumraon Raj, it is not possible to say that this land was then in the zerait cultivation of the Raj. But we are not prepared to accept the oral evidence led on behalf of the plaintiffs that they or their ancestors were in possession of the dispute land, or that the Raj recognized them as tenants. The Raj had recovered the land at considerable expense. The plaintiffs did not pay any nazrana or rent to the Raj,l and it is not likely that in these circumstances, the Raj would recognize them as tenants or allow them to cultivate the lands. Thus, from 1909 to 1931 barring two years between 1913 and 1915, the plaintiffs and their ancestors were not in possession of any portion of the land between the Bhagar and the Ganges. as regards the bed of the Bhagar, the matter stood thus. By 1925, the Bhgar was drying up and the plaintiffs' ancestors took possession of a strip of 77 bighas and successfully retained that strip. But the plaintiffs have failed to establish that they or their ancestors were in possession of any portion of the Dubha Taufir other than this trip of 77 bighas and their plots in the other 35 bighas strip. The effect of the order under S.145, dated September 1, 1931 was that the Dumraon Raj was declared entitled to the possession of the entire Dubha Taufir barring the two strips of 35 and 77 bighas. In 1931 and thereafter, there were considerable accretions to the lands in the possession of Dumraon Raj and the pattadars. Since the plaintiffs made several attempts for getting possession of those lands and the subsequent accretions, but those attempts were always unsuccessful. The plaintiffs were out of possession of the lands in suit continuously from November 30, 1915 upto May 27, 1925 and again from May 27, 1925 upto the date of the suit. In the revisional survey of 1937, the defendants 1st party are shown to be in possession of these lands. The plaintiffs alleged possession and dispossession within 12 years. Assuming that Article 47 does not apply, the suit is governed by Article 142. The plaintiffs have failed to establish their possession within 12 years of the suit, and the suit is barred by Article 142 of the Indian Limitation Act.
22. Learned senior counsel appearing for the defendant further cited authority in the matter of Munshi Manzoor Ali Khan and Ors. v. Sukhbasi Lal and Ors. reported in : AIR 1974 S.C. Page 706. In this case the Apex Court held that the plaintiff was not found in possession within 12 years from the date of cause of action and therefore suit by plaintiff for declaration of title and possession liable to be dismissed. Para 7, 8 and 10 of the Judgment read as under:
7. In the appeal of the defendants to the High Court it was contended that the suit was barred under Article 142 of Limitation Act, 1908, and that Article 47 had no application to the case. The High Court held that Article 47 did not apply because
the plaintiffs in the present suit cannot be held to be persons bound by an order respecting the possession of the property in dispute by the order passed on 431959 as that order was passed against Amir Khan Iqbalbeg and Nabibux in their individual capacity.
The High Court then held that Article 142 of Limitation Act applied because the suit was for possession of the land after the plaintiffs alleged dispossession and that it was therefore, necessary that the suit should have been instituted within 12 years of the date of dispossession.
8. the High Court held that the starting point of limitation could not be from April 30, 1957, and it was necessary for the plaintiffs to show that they had been in possession within 12 years of the suit.
10. The learned Counsel for the appellants was unable to point out any material to show that there was any evidence on the record establishing that the plaintiffs were possession of the suit land within 12 years of the date of the suit. In our opinion the High Court was right in holding that the suit was barred under Article 142 of the Limitation Act.
23. In both these authorities, the Apex Court held that as per Article 142 the Limitation Act, 1908, the burden is on the plaintiff to prove that within 12 years before from the date of filing of the suit, he was in possession. If he fails to prove the same, the plaintiff is not entitled to claim possession of the immovable property. Article 142 of the Limitation Act, 1908 specifically states in respect of possession of immovable property that when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession, the limitation starts from the date of dispossession or discontinuation. In the present case, the defendant proved that the plaintiffs discontinued their possession in respect of the disputed suit land i.e. 15 Gunthas out of Survey No. 70 from the date of execution of sale deed in the year 1354 Fasli. Therefore, it is clear that both the Courts below erred in coming to the conclusion that defendants failed to prove their adverse possession in respect of the suit land. It is crystal clear from the act of the plaintiff that he on his own, discontinued the possession of the suit land immediately after execution of sale deed in favour of the defendants.
24. Learned senior counsel Mr. Shah appearing on behalf of the defendant further relied on the Judgment in the matter of Smt. Raj Rani and Anr. v. Kailash Chand and Anr. reported in : AIR 1977 S.C. Page 1123. In this case the Apex Court held that if the plea of limitation is taken in pleading, then same to be decided by the Court by framing appropriate issues. The Apex Court also held that the plaintiff claiming possession in a suit based on title, has to prove that he was in actual or constructive possession within 12 years as per Article 142 of the Limitation Act, 1908.
25. Learned senior counsel Mr. Shah appearing for the defendant further relied on the authority in the matter of Inderdeo Raj and Ors. v. Deokaran Raj and Ors. reported in : A.I.R. 1955 Patna, 292 (Vol. 42, C.N. 73). In this case the Patna High Court held that when a plaintiff sues for possession and alleges dispossession but fails to show that he has brought the suit within 12 years of dispossession there is a complete extinguishment of his title under Section 28 of the Limitation Act and the title is taken as transferred to the adverse possessor after the lapse of the statutory period. Head Note (b) of this authority, reads as under:
(b) Limitation act (1908), Section 28 and Articls 142 and 144 Adverse possession, what is Suit for possession on basis of dispossession Onus failure to prove dispossession within twelve years Effect. Ordinarily, when a plaintiff sues for possession and alleges dispossession but fails to show that he has brought the suit within 12 years of dispossession there is a compete extinguishment of his title under Section 28 of the Limitation Act and the title is taken as transferred to the adverse possessor after the lapse of the statutory period. In order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent; in other words, the possession must be actual visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation.
26. Mr. Shah, learned senior counsel appearing on behalf of the defendant further relied on the authority in the matter of Dukhiram Dey v. Mrityunjoy Prosad Daw and Ors. reported in AIR 1982 Cal 294. In this case the Calcutta High Court held that Article 142 of Limitation Act, 1908 is applicable if the plaintiff has discontinued the possession and the onus is on the plaintiff to prove the possession of the property within 12 years. Para 22 and 24 of the Judgment read as under:
22. Reference may be made to the cases in : (1927) 31 Cal WN 806 : (AIR 1928 Cal 118), : (1937) 66 Cal LJ 359 : AIR 1938 Cal 206, : AIR 1939 Cal 354, AIR 1966 SC 605 and : AIR 1974 SC 706. The principle of law enunciated under the provision of Article 142 of the old Limitation Act of 1908 is that that article applies if the plaintiff has discontinued possession and the onus is on him to prove his possession of the property within twelve years.'
24. It is clear from the aforesaid discussion that a fictitious sale was made by him in favour of Tara Prosad in 1965, i.e., after the statutory period of twelve years. The case is squarely covered by Section 31 of the New Limitation Act. We hold that Tarapada acquired no interest by his purchase from Akbar and the plaintiffs have acquired no title to the suit land on the footing of the purchase made by them from Tara Prosad. The earlier registered kobala of 1952 in Dukhiram's favour operated as notice under explanation I of Section 3 of the Transfer of Property Act and his actual possession of the property was tantamount to constructive notice under explanation II of that section. P.W. 7 Mrityunjoy, says that he did not even enquire at the Municipal Office or make any search about Dukhiram. We further54 hold that Akbar or Tara Prosad or the plaintiffs had no possession in the suit land within 12 years of the filing of the plaint and hence, the suit is barred by limitation.
27. After going through these authorities, it is clear that the onus as per Article 142 of the Limitation Act, 1908 was on plaintiff to show that before filing the suit for possession, he was in possession of the suit land within 12 years before the date of the Suit. If he failed to prove possession within 12 years before filing the suit, he could not claim any relief even on the basis of the title to the immovable property, as per Article 142 of the Limitation Act of 1908.
28. Learned Counsel for the defendant further relied on the Judgment in the matter of Mani Devi and Ors. v. Ram Prasad and Ors. reported in : AIR 1968 Patna 70 (V 55 C 25). In this case the Patna High Court held that if a suit, appeal or application filed on a particular date after commencement of the new Act of 1963 is not barred under that Act, recourse to Section 30 need not be taken and is not permissible to be taken. In that event Section 31 of the Limitation Act would come into play and if the remedy was barred by the expiry of period of limitation prescribed under the Old Act of 1908 before the commencement of the new Act of 1963, a larger period, if any, prescribed under any of the articles of the new Act will not revive the remedy which was barred. Head Note (B) of the Judgment reads as under:
(B) Limitation Act (1963), Sections 30, 31 and Pre. and S.3 Scope and applicability. If a suit, appeal or application filed on a particular date after commencement of the new Act of 1963 is not barred under that Act, recourse to Section 30 need not be taken and is not permissible to be taken. In that event Section 31 of the Limitation Act would come into play and if the remedy was barred by the expiry of period of limitation prescribed under the Old Act of 1908 before the commencement of the new Act of 1963, a larger period, if any, prescribed under any of the articles of the new Act will not revive the remedy which was barred. But subject to that , if the filing of the suit, appeal or application is not barred under the new Act on the day it is filed, it is simply not barred. If however, it is barred on the day it is filed, under Section 3 of the new Act but it was not so barred under the period of limitation prescribed by the Act of 1908, then and then only Section 30 comes into play, in order to find out as to whether, taking recourse to Section 30, it can be held that the suit, appeal or application filed on a particular day is not barred by limitation.
29. In the present case, the defendant proved that since the sale deed i.e. 1354 Fasli (1945 A.D.) , the plaintiff had discontinued his possession in respect of the suit land and the present suit came to be filed on 2nd February, 1976. Therefore, the limitation prescribed under the Old Act of 1908 is applicable in the present case. In view of Article 142 of the Limitation Act, 1908 the suit filed by the plaintiff is clearly barred by law of limitation. For the purpose of limitation, learned Counsel for the defendant relied on the authority in the matter of Ramaih v. N. Narayana Reddy (Dead) by LRs reported in (2204) 7 Scc 541. In this case the Apex Court held that the suit filed by the plaintiff for possession 13 years after dispossession was barred by limitation. Head Note (A) of this Judgment reads as under:
(A) Limitation Act, 1963 Arts. 64 and 65 Applicability Held, applicability of the relevant article, has to be decided on the basis of pleadings But by suppression of material facts and skillful pleading, plaintiff cannot seek to avoid the inconvenient article Suit filed by appellant in 1984 for possession of the property without disclosing that admittedly he was ousted from the property in 1971 Held, Article 64 attracted and suit, having been filed thirteen years after dispossession, was barred by limitation.
30. On the basis of above mentioned authorities, it is crystal clear that the suit filed by the plaintiff on 2nd February, 1976 was barred by law of limitation and therefore the concurrent findings recorded by both the Courts below on the point of limitation and adverse possession require to be set aside.
31. Mr. Deshpande, learned Counsel appearing on behalf the plaintiff submitted that the suit filed by the plaintiff is within time. He submitted that the sale deed executed in the year 1354 Fasli in favour of defendant clearly shows that the plaintiff sold only 2 Acres of land from Survey No. 70. Nowhere it is stated in the said sale deed that remaining 15 Gunthas of land also sold and/or possession of the same handed over to the defendant. He submitted that both the Courts concurrently held against the defendant on the point of limitation as well as adverse possession. He submitted that this Court should not interfere in Second Appeal with concurrent findings of Courts below only on the ground that Judgments of the Court below were perverse and were given in utter disregard of the important material on record, particularly misconstruction of particular document. In support of his submission, learned Counsel for plaintiff relied on the authority in the matter of Narayan Rajendran and Anr. v. Lekshmy Sarojini and Ors. reported in : (2009) 5 Supreme Court Cases, Page 264. The relevant portion of Para 24, 27 and 39 of the said Judgment read as under:
24. '46. In Bholaram V. Ameerchand a three Judge Bench of this Court reiterated the statement of law. The High court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High court the utmost that could be said was that he findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.'
27. 53. In Thiagarajan V. Venugopalaswamy B. Koli this Court has held that the High Court in its jurisdiction under Section 100 CPC was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.'
57. Again, in Madhavan Nair V. Bhaskar Pillai this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. This Court observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.'
39. '68. The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, reestablish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, insofar as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.'
70. Now, after the 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPCV only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as 'substantial question of law' which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become 'third trial on facts' or 'one more dice in the gamble'. The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved,
(ii) The substantial question of law to precisely state such question,
(iii) A duty has been cast on the High Court to formulate substantial questions of law before hearing the appeal;
(iv) Another part of the section is that the appeal shall be heard only on that question
32. Learned Counsel for the plaintiff also relied on the authority in the matter of Mst. Sugani v. Rameshwar Das and Anr. reported in 2006 AIR SCW 2606. In this case, the Apex Court held that wrong application of law decided by the Courts to the facts of the case does not constitute substantial question of law. He relied on para 27 of the Judgment, which reads as under:
27. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in Second Appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey : (1976 (1) SCC 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.
33. In both these cases the Apex Court held that substantial question of law has to be distinguished from substantial question of facts. That is not the question involved in this case. In the present case both the Courts erred in coming to the conclusion that suit filed by the plaintiff was within limitation. It is crystal clear from the record that the plaintiff filed the suit for injunction and it was amended after five years and possession was claimed. The suit was filed more than 12 years after the plaintiff discontinued possession of the suit land and their claim for possession was barred under Article 142 of the Limitation Act of 1908. Therefore, in my view, both these authorities are not applicable being distinguishable on facts.
34. In respect of the claim of defendant for adverse possession of the suit land, learned Counsel for the plaintiff submitted that the defendant never claimed adverse possession in respect of the suit land. There are no averments either in their written statement and/or in the appeal memo preferred by them against the Judgment and decree passed by the trial Court. Therefore, for the first time in the Second Appeal the defendant cannot take a plea of adverse possession. He further submitted that mere possession for a long time, does not convert permissive possession into adverse possession. In support of this submission, learned Counsel for the plaintiff relied on the Judgment of the Apex Court in the matter of Roop Singh (Dead) through L.Rs v. Ram Singh (Dead) through L.Rs. reported in AIR 2000 S.C. 1485. In this case, the Apex Court held that the defendant entered into possession of the premises as bataidar (tenant) and remained in possession for long time, then also he cannot claim adverse possession. It is clear that a person who is in permissive possession of the land, cannot claim adverse possession against the true owner. In the present case the plaintiff on his own after executing the sale deed in the year 1354 Fasli, discontinued his possession of the suit land. Therefore the present authority is not helpful to the plaintiff to controvert the submission of the defendant in respect of possession. On similar point, learned Counsel for the plaintiff relied on the authority in the matter of Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil reported in : AIR 1995 S.C. Page 895. Head Note (C) of this Judgment reads as under:
(C) Limitation Act (36 of 1963), Article 65 Adverse possession Meaning Possession referable to lawful title Not adverse possession.
Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
35. In this case the Apex Court held that one who holds possession on behalf of another, does not by mere denial of the others' title, makes his possession adverse so as to give him the benefit of statute of limitation. But in the present case, plaintiff's father himself discontinued his possession over the suit land from the date of execution of the sale deed in the year 1354 Fasli (1945 A.D.) and thereafter the plaintiffs filed a suit for injunction in the year 1976 and same was amended in the year 1981 inserting prayer clause for possession also. This itself shows that the plaintiff's father discontinued his possession in respect of the suit land and the same continued after his death for more than 12 years before filing of the suit and therefore as per Article 142 of the Limitation Act, 1908, the suit is barred by limitation. Therefore, this authority cannot help the plaintiff to come out from the law of limitation. On the same point the learned Counsel for the plaintiff relied on the authority in the matter of Indira v. Arumugam and Anr. reported in : AIR 1999 S.C. Page 1549. Considering the facts of this authority and the facts in the present case in hand, in my opinion, this authority does not support the submissions of the learned Counsel for the plaintiff on the point of adverse possession under the Old and the New Limitation Act i.e. Limitation Act of 1908 and Limitation Act of 1963.
36. In the result, the Respondents failed to prove that the suit filed by their predecessors plaintiffs for possession of the suit land was within limitation as per the provisions of Limitation Act, 1908 and Limitation Act of 1963. The Appellants legal heirs of the deceased defendant have proved that they acquired title to the suit land by adverse possession. Hence the substantial legal questions reproduced at Para 13 supra are answered in the affirmative. Consequently, the Appeal is allowed. The Judgments and Decrees of the two Courts below are set aside and the suit is dismissed. The Respondents shall pay the costs of Appellants and bear their own through out.